Imagine you’re a 69-year-old retired veteran, taking your daily stroll through Seattle, leaning on a golf club you typically use as a cane. Suddenly, a stranger approaches, falsely accuses you of swinging the golf club at her, and demands you drop the golf club immediately. When you naturally refuse to relinquish your property, the stranger restrains you and, against your will, transports you away from the scene.
Wouldn’t you expect the stranger to be arrested on a slew of charges – kidnapping and attempted theft among them?
Suppose you are working as a reporter in Ocean County, New Jersey and you stumble upon a serious car accident. After receiving permission from the firefighters on scene, you record the scene of the accident with the intention of filing a story about the incident. A bystander takes exception to your activities, forcibly takes your camera, restrains you, and then, without your consent, forces you into his car, and whisks you away from the scene.
In this case, any reasonable person would expect the bystander to be cited for theft and kidnapping, among other charges.
Maybe you’re just minding your own business in California, when someone accuses you of murder. The prosecutor knows the statements of the accuser are patently false, but allows the trial to continue without making any mention of the false statements. You are convicted of the murder, based upon the false statements.
Wouldn’t you expect the prosecutor to be arrested for denying your rights to a fair trial?
If regular citizens committed these offenses, they undoubtedly would have been held accountable for their actions, and prosecuted to the full extent provided by law. In fact, these offenses were committed by government officials charged with upholding the law!
In the first example, Seattle Police Officer Cynthia Whitlatch accused William Wingate of swinging his golf club at her. She arrested him on these charges. A video later exonerated Wingate, clearly displaying that Officer Whitlatch lied about the incident. In the six months between the arrest and the release of the video, William Wingate was coerced to plead “guilty to unlawful use of a weapon, a misdemeanor, under an agreement in which the case would be dismissed after two years if he complied with all conditions ordered by the judge” (as reported by the Seattle Times). Seattle police officials later apologized to Wingate.
In the second example, Andrew P. Flinchbaugh, a freelance reporter for The Lacey Reporter was filming the aftermath of a single-car accident involving an officer employed by the Ocean County, New Jersey prosecutor’s office. Although Mr. Flinchbaugh was not interfering with first responders on the scene, Ocean County Prosecutor’s Office Detective David Margentino demanded that Mr. Flinchbaugh hand over his camera, even though Mr. Flinchbaugh was conducting himself completely within the law. When Mr. Flinchbaugh rightfully refused, he was arrested on a disorderly person’s offense. Charges against Mr. Flinchbaugh were later dropped, but the prosecutor’s office refused to issue an apology.
In the final example, Johnny Baca was twice convicted of murdering John Adair and John Mix, based upon the false testimony of a jailhouse informant. Although prosecutors knew the testimony was false, they continued to press the case, until judges from the U.S. Ninth Circuit Court of Appeal excoriated the prosecutor’s for their misdeeds. Patrick J. Hennessey Jr., the lawyer representing Baca, was reported to say he had never seen such an “egregious” case of prosecutorial misconduct.
In all these cases, little has been done to hold the perpetrators accountable for their conduct. Officer Whitlatch has been reassigned to desk duty while an “investigation” is being conducted. No known sanctions have been levied against Detective Margentino, but the prosecutor’s office has promised to update their training so that future constitutional violations of this type will not continue. No prosecutors have been taken to task in the case of Mr. Baca. In none of these cases were the officials, operating under the color of law, held criminally responsible for their actions.
In America, we really live under two sets of laws – those applied to ordinary citizens, and those applied to those who are supposed to enforce the laws. Those charged with enforcing laws – judges, prosecutors, and police officers – are usually immune from criminal charges for the actions they perform as part of their official duties. This concept of sovereign immunity shields those we entrust to enforce the law from being held accountable for following those same laws. Essentially, while you or I will probably be held criminally accountable for actions that may violate laws, judges, prosecutors, and police are granted “get out of jail free” cards for violating these same laws.
The principles of judicial, prosecutorial, or police immunity have their origins in common law, and have been strengthened through statutory and case law. Defenders of sovereign immunity argue that immunity is necessary to allow these agents of the state freedom to perform their duties without the constant threat of being second-guessed or harassed. Proponents of immunity argue that agents of the court will be reluctant to diligently perform their jobs if, by doing so, they may be threatened with a barrage of lawsuits or possible criminal prosecution for simple “mistakes.”
As a result, agents of the court have an almost unlimited ability to betray the oath they swore to uphold the law. A judge may sign orders he knows are illegal and face no criminal sanctions. A prosecutor may allow false testimony or prosecute an individual she knows to be innocent and face no accountability for false imprisonment. A police officer may blatantly violate someone’s rights or plant evidence, yet continue to be employed as a public servant. The strongest sanctions that can be taken against agents of the court who betray their oaths is usually administrative – the loss of employment or the loss of his or her professional license. Criminal prosecution, even against the most egregious conduct, is almost unheard of.
Fortunately, the courts have begun to poke some holes in immunity laws. Sadly, these exceptions to sovereign immunity are not enough. Judges, prosecutors, and police officers are well-trained in all the nuances of law – far better versed than the average citizen. Yet, through our legal system, we do not hold them accountable to these laws. Considering the pressure and professional stature involved with making arrests and winning cases, there is no incentive for law enforcement agents to actually follow the law. In fact, and aided by immunity statutes, law enforcement agents are tacitly rewarded for skirting, or outright violating the law. This results in thousands of people falsely convicted each year and thousands more routinely having their civil and constitutional rights violated. When law enforcement agents aren’t held criminally accountable for their actions, abuses are bound to occur. As these abuses pile up, public trust in these authorities diminishes. Not only are individual liberties violated, the entire foundation of trust in the law crumbles.
If a typical citizen violates a law (regardless of whether she knew the action was illegal), she is branded a criminal. If a judge, prosecutor, or police officer violates the same law in the conduct of their jobs, it is merely labeled a “mistake,” with no criminal sanction. It betrays common sense that those who are most well-versed in the law are the least accountable to following it. This is an abject assault on liberty and the tenets of civilized society.